Delaware Machinery & Tool Co. v. Yates

• Decision Date: 13 July 1976
• Docket Number: No. 2--1075A289,2--1075A289
• Citation: 170 Ind.App. 6,351 N.E.2d 67
• Parties: DELAWARE MACHINERY & TOOL COMPANY, Defendant-Appellant, v. Dorothy Marie YATES, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 67

351 N.E.2d 67

170 Ind.App. 6

DELAWARE MACHINERY & TOOL COMPANY, Defendant-Appellant, v. Dorothy Marie YATES, Plaintiff-Appellee.

No. 2--1075A289.

Court of Appeals of Indiana, Second District.

July 13, 1976.

Michael V. Gooch, Harrison, Moberly & Gaston, Indianapolis, for defendant-appellant.

Wayne J. Lennington, Muncie, Frank E. Spencer, Indianapolis, for plaintiff-appellee.

SULLIVAN, Judge.

Appellant Delaware Machinery & Tool Company (Company) appeals from an award of the Full Industrial Board which granted Workmen's Compensation benefits to Dorothy Marie Yates (Yates) for the death of her husband, and from an order of the Board which denied Company's request for an autopsy.

The basic facts are undisputed. Yates' husband was injured on November 17, 1967 while in Company's employ. Company paid the medical expenses arising from the low blood pressure. The next morning, This routine surgery was performed on April 27, 1968, ending at about 3:15 P.M. At 6:30 P.M., Mr. Yates was discovered in a state of shock with abnormally law blood pressure. The next morning, April 28, an electrocardiogram was taken which demonstrated he had suffered an acute myocardial infarction. He was transferred to the coronary care unit, where he died at approximately 10:00 A.M. The immediate cause of death stated on the death certificate signed by one of the attending physicians, Dr. Burwell, was acute myocardial infarction. Dr. Nelson, a cardiologist who arrived just after the death requested an autopsy and was refused by Yates. A second request for an autopsy was apparently made by an agent of Company the day before the funeral and this request was also denied by Yates.

Yates filed an application for dependent's benefits with the Industrial Board on May 27, 1969. Company filed a motion requesting exhumation and an autopsy. This motion was denied by both the hearing member and the full Board, and the matter proceeded to a decision on the merits. The hearing member then awarded Yates burial expenses and $51.00 per week for 450 weeks. That award was affirmed by the full board. This Court reversed that award and remanded the case to the Industrial Board because the award was not accompanied by sufficiently specific findings of fact to allow intelligent review. Delaware Machinery & Tool Co. v. Yates (2d Dist.1973), Ind.App., 301 N.E.2d 857. The Industrial Board has now made adequate factual findings, and entered an award identical to that made earlier.

In its new findings, the Board found that a party requesting an autopsy pursuant to Ind.Ann.Stat. 22--3--3--6 (Burns Code Ed. 1974) ¹ must show that an autopsy is reasonable and necessary, and that Company had brought forward no evidence that its request was either reasonable or necessary. On the merits of Yates' claim, the Board found that the stress of the hernia operation caused the coronary occlusion which resulted in death from myocardial infarction. Dr. Nelson, an associate of Dr. Burwell and also an attending physician, testified that in his opinion death was caused by 'ventricular fibrillation which was secondary to an acute myocardial infarction'. He further explained that such myocardial infarction is caused by 'occlusion or thrombosis of the blood so that it doesn't flow'. Thus the immediate cause of death was the cardiac arrest, i.e., infarction brought about by an occlusion so that the blood would not flow to supply the heart muscle. Whether we speak of occlusion or infarction with respect to the sufficiency of evidence issue is not determinative. All we need know is whether the evidence supported a finding that the surgery for the employment-related hernia proximately caused the fatal cardiac arrest.

Company argues that the award was contrary to law because there was insufficient evidence to establish a causal connection between the surgery and the subsequent heart failure. Company also asserts that it properly filed its request for an autopsy and, having done so, had an absolute right to have one performed.

Before reaching the merits of this case, we note Yates' argument that Company has failed to present any error to this Court because Company's assignment of errors reads. '. . . that the decision and orders of the Industrial Board are contrary to law,' rather than '. . . the award is contrary to law.' (Emphasis supplied). While it is true that Ind.Ann.Stat. 22--3--4--8 (Burns Code Ed. 1974) provides that:

'an assignment of errors that the award of the full board is contrary to law shall be sufficient to present both the sufficiency of the facts found to sustain the award and the sufficiency of the evidence to sustain the finding of facts.' (Emphasis supplied).

to dismiss an appeal because the word 'decision' rather than 'award' was used would be to indulge in useless formalism. This court itself has used the terms interchangeably. See, for example, Slinkard v. Extruded Alloys (1971), 150 Ind.App. 479, 484, 277 N.E.2d 176 at 180, where we said, 'Thus, a filing of a duly certified transcript containing an Assignment of Errors that the decision of the Board is contrary to law with a proper discussion in the appellant's brief is all that is necessary to invoke this court's jurisdiction on review.' (Emphasis supplied). Company has properly presented its asserted errors to us.

I

THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE BOARD'S FINDING

THAT THE OPERATION CAUSED THE FATAL HEART ATTACK

Company's argument for reversal of the Board's award is that the conclusion that the defendant's coronary occlusion was caused by the hernia operation was based on evidence without probative value. Company recognizes the long-standing rule that we will not weigh the evidence on appeal, but will consider only the evidence which supports the Board's award, and will reverse an award only if the evidence in the record necessarily leads to the opposite conclusion than the one reached by the Board. Bohn Aluminum & Brass Plant #9 v. Kinney (2d Dist.1974), Ind.App., 314 N.E.2d 780; Callahan v. Lovelace Truck Service (3d Dist.1973), Ind.App., 301 N.E.2d 801. Company argues however, that the Board's conclusion is mere conjecture because the only evidence which connects the death with the hernia operation is based on an assumed essential fact which has no foundation in the record.

The only medical testimony of record is by way of the depositions of two cardiologists, Dr. Nelson (the associate of Dr. Burwell who performed the hernia surgery) who was called in when decedent's heart problems became apparent (but did not arrive until moments after Mr. Yates died), and Dr. Wolfram, whose testimony was based solely upon the medical records. Their testimony is in substantial agreement except as to the causal relationship between the operation and the occlusion which led to decedent's death.

The factual disagreement here concerns whether the stress of the hernia operation caused the coronary occlusion. Both doctors testified that the stress and strain which accompanies surgery can precipitate an occlusion, but disagreed as to whether this particular operation caused this particular coronary occlusion. Dr. Wolfram thought there was no causal connection because he could see nothing unusual in the surgery, and although as to individuals the effect of strain varies, a simple hernia repair does not usually subject a person to much strain.

Company asserts that Dr. Nelson's contrary opinion was based solely upon a presumption that the decedent suffered from atherosclerosis, a condition involving a restriction of the arteries thus making decedent more susceptible to cardiac failure. The only evidence that he may have suffered from this condition is testimony that most 64-year old men have atherosclerosis. Company asserts that a statistical inference that this particular decedent had atherosclerosis is improper and has no probative value.

When asked if he thought there was a causal connection between the surgery and the occlusion, Dr. Nelson responded:

'Oh, I think so, yes. I think that--it's hard to say. Atherosclerosis is a disease of life and people drop on the streets all the time, but I think it is a stress just like shoveling snow would be.

Q. You feel that the surgery then was a stress which could precipitate an occlusion such as Mr. Yates suffered here?

A. Yes, I think so.'

Company seizes upon this testimony as proof that Dr. Nelson relied upon a presumption of atherosclerosis in forming his opinion. This argument ignores, however, Dr. Nelson's later testimony on cross-examination:

Q. 'And does the magnitude of stress often affect whether or not a man may have a coronary?

A. Not necessarily, that's what makes it so difficult to decide in this.

Q. Would you say that the integrity of the arteries might have a bearing as to the kind of stress necessary to precipitate a coronary?

A. It might but there are a lot of unanswerable questions in the whole thing.

Q. Would an autopsy in this case have helped an analysis of the causal effects of the operation do you think as presenting the integrity of the artery, how strong the artery was or the occlusion, how large the occlusion was?

A. I really doubt if it would help much.'

Moreover, Dr. Nelson testified that a significant percentage of coronary occlusions caused by atherosclerosis occur in the sleep, without any precipitating stress at all. It is clear that Dr. Nelson's opinion concerning causation was based upon the stress of the operation, not a possible preexisting heart condition. Contrary to Dr. Wolfram's opinion, Dr. Nelson did not think that there need by anything unusual in the surgery to cause sufficient stress to precipitate a heart attack:

Q. 'Let me ask you this question with a little different terminology to see if we might come a little closer to it. Within the realm of reasonable medical certainty, is it your opinion that the operation had a causal connection on the occlusion and subsequent death of Mr. Yates?

A. Yes.

Q. In...